Registration Statement No. 333-
|
Republic of the Marshall Islands
(State or other jurisdiction of
incorporation or organization)
|
N/A
(I.R.S. Employer
Identification Number)
|
Page |
|||||
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
|
iii
|
||||
INDUSTRY AND MARKET DATA
|
vi
|
||||
PROSPECTUS SUMMARY
|
1
|
||||
THE OFFERING
|
4
|
||||
RISK FACTORS
|
5
|
||||
USE OF PROCEEDS |
6 | ||||
CAPITALIZATION
|
7
|
||||
TAX CONSIDERATIONS
|
8
|
||||
DESCRIPTION OF CAPITAL STOCK
|
9
|
||||
SELLING SHAREHOLDERS
|
17
|
||||
PLAN OF DISTRIBUTION
|
19
|
||||
ENFORCEABILITY OF CIVIL LIABILITIES |
22 | ||||
EXPERTS
|
23
|
||||
EXPENSES
|
23 | ||||
LEGAL MATTERS
|
23
|
||||
WHERE YOU CAN FIND ADDITIONAL INFORMATION
|
23
|
||||
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
|
24
|
||||
PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
|
II-1
|
8 Panamax Bulk Carriers
|
||||
Name of Vessel
|
Size (dwt)
|
Year Built
|
Builder
|
|
1
|
Melia
|
76,225
|
2005
|
Tsuneishi Corp., Tadotsu
|
2
|
Artemis
|
76,942
|
2006
|
Namura Shipbuilding Co., Ltd.
|
3
|
Leto
|
81,297
|
2010
|
Universal Shipbuilding Corp.
|
4
|
Selina
|
75,700
|
2010
|
Jiangnan Shipyard (Group) Co., Ltd.
|
5
|
Maera
|
75,403
|
2013
|
Jiangnan Shipyard (Group) Co., Ltd.
|
6
|
Ismene
|
77,901
|
2013
|
Jiangnan Shipyard (Group) Co., Ltd.
|
7
|
Crystalia
|
77,525
|
2014
|
Jiangnan Shipyard (Group) Co., Ltd.
|
8
|
Atalandi
|
77,529
|
2014
|
Jiangnan Shipyard (Group) Co., Ltd.
|
6 Kamsarmax Bulk Carriers
|
||||
9
|
Maia
|
82,193
|
2009
|
Tsuneishi Shipbuilding Co., Ltd.
|
10
|
Myrsini
|
82,117
|
2010
|
Tsuneishi Shipbuilding Co., Ltd.
|
11
|
Medusa
|
82,194
|
2010
|
Tsuneishi Shipbuilding Co., Ltd.
|
12
|
Myrto
|
82,131
|
2013
|
Tsuneishi Shipbuilding Co., Ltd.
|
13
|
Astarte
|
81,513
|
2013
|
Daewoo Shipbuilding & Marine Engineering Co. Ltd.
|
14
|
Leonidas P. C.
|
82,165
|
2011
|
Tsuneishi Shipbuilding Co. Ltd.
|
5 Post-Panamax Bulk Carriers
|
||||
15
|
Alcmene
|
93,193
|
2010
|
Jiangsu New Yangzi Shipbuilding Co. Ltd.
|
16
|
Amphitrite
|
98,697
|
2012
|
Tsuneishi Group (Zhoushan) Shipbuilding Inc.
|
17
|
Polymnia
|
98,704
|
2012
|
Tsuneishi Group (Zhoushan) Shipbuilding Inc.
|
18
|
Electra
|
87,150
|
2013
|
Hudong-Zhongua Shipbuilding (Group) Co., Ltd.
|
19
|
Phaidra
|
87,146
|
2013
|
Hudong-Zhongua Shipbuilding (Group) Co., Ltd.
|
12 Capesize Bulk Carriers
|
||||
20
|
Aliki
|
180,235
|
2005
|
Imabari Shipbuilding, Saijo Shipyard
|
21
|
Baltimore*
|
177,243
|
2005
|
Namura Shipbuilding Co., Ltd.
|
22
|
Semirio
|
174,261
|
2007
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
23
|
Boston
|
177,828
|
2007
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
24
|
Houston
|
177,729
|
2009
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.**
|
25
|
New York
|
177,773
|
2010
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
26
|
Seattle
|
179,362
|
2011
|
Hyundai Heavy Industries Co., Ltd.
|
27
|
P. S. Palios
|
179,134
|
2013
|
Hyundai Heavy Industries Co., Ltd.
|
28
|
G. P. Zafirakis
|
179,492
|
2014
|
Qingdao Beihai Shipbuilding Heavy Industry Co., Ltd.
|
29
|
Santa Barbara
|
179,426
|
2015
|
Qingdao Beihai Shipbuilding Heavy Industry Co., Ltd.
|
30
|
Florida***
|
182,063
|
2022
|
Namura Shipbuilding Co., Ltd
|
31
|
New Orleans
|
180,960
|
2015
|
Shanghai Waigaoqiao Shipbuilding Co., Ltd.
|
4 Newcastlemax Bulk Carriers
|
||||
32
|
Los Angeles
|
206,104
|
2012
|
Shanghai Jiangnan-Changxing Shipbuilding Co., Ltd.
|
33
|
Philadelphia
|
206,040
|
2012
|
Shanghai Jiangnan-Changxing Shipbuilding Co., Ltd.
|
34
|
San Francisco
|
208,006
|
2017
|
Jiangnan Shipyard (Group) Co., Ltd.
|
35
|
Newport News
|
208,021
|
2017
|
Jiangnan Shipyard (Group) Co., Ltd.
|
*Vessel sold and expected to be delivered to her new owners in the third quarter of 2022.
|
**Built jointly with Shanghai Jiangnan-Changxing Shipbuilding Co., Ltd.
|
***Bareboat chartered-in.
|
• |
On an actual basis; and
|
• |
On an as adjusted basis to give effect to the following transactions through August 19, 2022:
|
i. |
The repayment of $7.5 million of long-term debt and finance liability;
|
ii. |
The issuance of 57,581 shares and repurchase of 628,945 shares of common stock for an aggregate amount of $2.5 million net proceeds;
|
iii. |
The declaration of dividends on common stock of $0.275 per share for an aggregate amount of $23.7 million and $0.2 million of dividends on preferred stock.
|
As of June 30, 2022
|
||||||||
Actual
|
As Adjusted
|
|||||||
(in thousands of U.S. dollars)
|
||||||||
Long-term debt and finance lease liability (including current portion)
|
$
|
451,718
|
$
|
444,185
|
||||
Shareholders’ equity
|
||||||||
Preferred Stock
|
$
|
26
|
$
|
26
|
||||
Common Stock, $0.01 par value; 200,000,000 shares authorized and 86,771,203 and 86,199,839 issued and outstanding on June 30, 2022 and August 19, 2022,
respectively
|
868
|
862
|
||||||
Additional Paid in Capital
|
991,499
|
988,983
|
||||||
Accumulated Other Comprehensive Income
|
72
|
72
|
||||||
Accumulated Deficit
|
(570,360
|
)
|
(594,289
|
)
|
||||
Total stockholders' equity
|
$
|
422,105
|
$
|
395,654
|
||||
Total capitalization
|
$
|
873,823
|
$
|
839,839
|
• |
the 10th day after public announcement that a person or group has acquired ownership of 15% or more of the Company’s common stock; or
|
• |
the 10th business day (or such later date as determined by the Company’s board of directors) after a person or group announces a tender or exchange offer which would result
in that person or group holding 15% or more of the Company’s common stock.
|
• |
our common stock certificates and book entry shares will evidence the Rights, and the Rights will be transferable only with those certificates; and
|
• |
any new common stock will be issued with Rights and new certificates or book entry shares, as applicable, will contain a notation incorporating the Rights Agreement by
reference.
|
• |
we are acquired in a merger or other business combination transaction, other than specified mergers that follow a permitted offer of the type we describe above; or
|
• |
50% or more of our assets or earning power is sold or transferred.
|
• |
to cure any ambiguity, defect or inconsistency;
|
• |
to make changes that do not materially adversely affect the interests of holders of Rights, excluding the interests of any acquiring person; or
|
• |
to shorten or lengthen any time period under the Rights Agreement, except that we cannot lengthen the time period governing redemption or lengthen any time period that
protects, enhances or clarifies the benefits of holders of Rights other than an acquiring person.
|
Selling Shareholder
|
Number of shares beneficially owned prior to this offering (1)
|
Number of shares offered
|
Shares beneficially owned after giving effect to this offering
|
||
Number
|
Percentage (3)
|
Number
|
Percentage
|
||
Sea Trade Holdings Inc. (2)
|
18,487,395
|
17.66%
|
18,487,395
|
-0-
|
-0-
|
(1) |
Represents shares of our common stock issuable upon the exercise of warrants to purchase such shares at nine separate closings, each for the sale of a vessel
by Sea Trade to the Company (through a wholly-owned subsidiary) under the Master Agreement and a separate Memorandum of Agreement.
|
(2) |
Transatlantic Shipholdings Inc., a Marshall Islands corporation (“Transatlantic”) and Atlanta International Inc., a Marshall Islands corporation (“Atlanta”),
together own all of the outstanding voting capital stock of Sea Trade. Transatlantic is controlled by Anastassis G. David, the chairman of Sea Trade’s board of directors. Atlanta is controlled by George Mouskas, the president of Sea Trade.
Accordingly, Messrs. David and Mouskas may be deemed to share voting and dispositive power over the shares of our common stock that are beneficially owned by Sea Trade.
|
(3) |
This percentage is calculated based upon 86,199,839 shares of our common stock outstanding as of August 19, 2022, and includes an additional 18,487,395
shares of our common stock subject to such warrants, exercisable only by Sea Trade on the relevant vessel delivery dates under the Memorandums of Agreement.
|
• |
ordinary brokerage transactions or transactions in which the broker solicits purchasers;
|
• |
purchases by a broker or dealer as principal and the subsequent resale by such broker or dealer for its account;
|
• |
block trades, in which a broker or dealer attempts to sell the securities as agent but may position and resell a portion of the securities as principal to
facilitate the transaction;
|
• |
through the writing of options on the securities, whether such options are listed on an options exchange or otherwise;
|
• |
an exchange distribution in accordance with the rules of the applicable stock exchange;
|
• |
in transactions other than on such exchanges or in the over-the-counter market;
|
• |
through privately negotiated transactions;
|
• |
through the settlement of short sales entered into after the date of this prospectus;
|
• |
by agreement with underwriters or broker-dealers to sell a specified number of securities at a stipulated price per share;
|
• |
a combination of any such methods of sale;
|
• |
any other method permitted pursuant to applicable law.
|
• |
the number and type of securities to be sold;
|
• |
the purchase price;
|
• |
the name of each selling shareholder and the name of any broker-dealer or agent effecting the sale or transfer and the amount of any applicable discounts,
commissions or similar selling expenses; and
|
• |
any other relevant information.
|
SEC registration fee
|
$
|
9,203
|
||
Legal fees and expenses
|
$
|
50,000
|
||
Accounting fees and expenses
|
$
|
25,000
|
||
Miscellaneous
|
$
|
40,797
|
||
Total
|
$
|
125,000
|
• |
Our Annual Report on Form 20-F for the year
ended December 31, 2021, filed with the Commission on April 27, 2022, which contains our audited consolidated financial statements for the most recent fiscal year for which those statements have been filed;
|
• |
Our Report on Form 6-K, furnished to the Commission on
Februry 6, 2019;
|
• |
Our Report on Form 6-K, furnished to the Commission on May
18, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on May
19, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on May
23, 2022;
|
• |
Our Reports on Form 6-K, furnished to the Commission on
May 25, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on
June 15, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on
June 16, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on July
5, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on
July 20, 2022;
|
• |
Our Reports on Form 6-K, furnished to the Commission on
July 28, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on
August 1, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on
August 9, 2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on
August 11,2022;
|
• |
Our Report on Form 6-K, furnished to the Commission on
August 17, 2022;
|
• |
Our Form 8-A12B, filed with the Commission on March 15,
2005, registering our common stock under Section 12(b) of the Exchange Act, and any amendment filed thereto;
|
• |
Our Form 8-A12B, filed with the Commission on February
13, 2014, registering our 8.875% Series B Cumulative Redeemable Perpetual Preferred Stock under Section 12(b) of the Exchange Act, and any amendment filed thereto; and
|
• |
Our Form 8-A12B, filed with the Commission on January
15, 2016, registering our preferred stock purchase rights under Section 12(b) of the Exchange Act, and any amendment filed thereto.
|
(1) |
Actions not by or in right of the corporation. A corporation shall have the power to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact
that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of no contest, or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
|
(2) |
Actions by or in right of the corporation. A corporation shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him or
in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not, opposed to the best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
|
(3) |
When director or officer successful. To the extent that a director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in subsections (1) or (2) of this section, or in the defense of a claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually
and reasonably incurred by him in connection therewith.
|
(4) |
Payment of expenses in advance. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid in advance
of the final disposition of such action, suit or proceeding as authorized by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as authorized in this section.
|
(5) |
Indemnification pursuant to other rights. The indemnification and advancement of expenses provided by, or granted pursuant to, the
other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.
|
(6) |
Continuation of indemnification. The indemnification and advancement of expenses provided by, or granted pursuant to, this section
shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
|
(7) |
Insurance. A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a
director or officer of the corporation or is or was serving at the request of the corporation as a director or officer against any liability asserted against him and incurred by him in such capacity whether or not the corporation would have
the power to indemnify him against such liability under the provisions of this section.
|
Exhibit
No.
|
Description of Exhibit
|
4.1
|
|
4.10
|
|
5.1
|
|
8.1
|
|
23.1
|
|
23.2
|
|
23.3
|
|
24
|
|
107
|
(a) |
Under Rule 415 of the Securities Act,
|
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement unless the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form of a prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
|
(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
|
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
|
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such
information in the registration statement.
|
(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
(4) |
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering
or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or
Rule 3-19 under the Securities Act of 1933 if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Form F-3.
|
(5)(i) |
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser;
|
(A) |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this Registration Statement as of the date the filed prospectus was deemed
part of and included in this Registration Statement; and
|
(B) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to
such effective date.
|
(6) |
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
|
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or
on behalf of the undersigned registrant; and
|
(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
(b) |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
|
(c) – (d) |
Not applicable.
|
(e) |
The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest
annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim financial information.
|
(f) – (g) |
Not applicable.
|
(h) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
|
(i) |
Not applicable.
|
(j) |
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
|
(k) |
Not applicable.
|
DIANA SHIPPING INC.
|
||
|
|
|
By:
|
/s/ Semiramis Paliou
|
|
Name:
|
Semiramis Paliou
|
|
Title:
|
Director and Chief Executive Officer
|
|
|
|
Signature
|
Title
|
|
/s/ Semiramis Paliou
|
Director and Chief Executive Officer
|
|
Semiramis Paliou
|
(Principal Executive Officer)
|
|
|
||
/s/ Simeon P. Palios
|
Director and Chairman of the Board
|
|
Simeon P. Palios
|
||
|
|
|
/s/ Anastassis Margaronis
|
Director and President
|
|
Anastassis Margaronis
|
|
|
|
|
|
/s/ Ioannis Zafirakis
|
Director, Chief Financial Officer, Chief Strategy Officer, Treasurer and Secretary
|
|
Ioannis Zafirakis
|
(Principal Financial Officer)
|
|
|
|
|
/s/ Eleftherios Papatrifon
|
Chief Operating Officer
|
|
Eleftherios Papatrifon
|
||
|
|
|
/s/ Maria Dede
|
Chief Accounting Officer
|
|
Maria Dede
|
(Principal Accounting Officer)
|
|
|
|
|
/s/ Simon Morecroft
|
Director
|
|
Simon Morecroft
|
|
|
|
|
|
/s/ Konstantinos Psaltis
|
Director
|
|
Konstantinos Psaltis
|
|
|
|
|
|
/s/ Kyriacos Riris
|
Director
|
|
Kyriacos Riris
|
|
|
|
|
|
/s/ Apostolos Kontoyannis
|
Director
|
|
Apostolos Kontoyannis
|
|
|
/s/ Konstantinos Fotiadis
|
Director
|
|
Konstantinos Fotiadis
|
|
BULK CARRIERS (USA) LLC
|
||
By: Diana Shipping Inc., its Sole Member
|
||
By:
|
/s/ Semiramis Palios
|
|
Name:
|
Semiramis Palios
|
|
Title:
|
Director and Chief Executive Officer
|
|
a. |
Exercise Procedure. Provided that the Registration Statement has been
declared effective by the SEC by the Effectiveness Deadline, this Warrant shall be exercised on the Exercise Date, by delivering an exercise notice, in the form attached hereto (the “Exercise Notice”), completed and duly signed. An Exercise Notice shall be delivered on the Delivery Date. The Exercise Notice does not need to be an ink-original, notarized or contain a
medallion guarantee or any other guarantee of any nature. The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as
cancellation of the original Warrant when the Warrant Shares are issued to the Holder.
|
b. |
Exercise Price. The Company hereby acknowledges that in connection with
the issuance of this Warrant, that consideration for full value in respect of the Exercise Price has been received and allocated; as such, no further payment, whether in cash or in kind, shall be required to be paid in order to effect the
exercise of this Warrant and delivery of the Warrant Shares to the Holder upon delivery of Warrant Shares. Upon delivery of an Exercise Notice for the exercise of the Warrant for the Warrant Shares application of the Aggregate Exercise Price
(in accordance with Section 3(a) and (b) hereof), the Company shall cause its transfer agent (the “Transfer Agent”) to issue the Warrant Shares on
the Exercise Date; provided that if the Company receives the Exercise Notice at or after 4:00 p.m. (local time in New York City) the Irrevocable Instruction Letter may be delivered to the Transfer Agent on the following Business Day. The
Warrant Shares shall be delivered in book-entry form and shall be immediately available via DWAC to the Holder’s account as specified in the Exercise Notice, subject to the Holder’s broker receipt, in such denomination or denominations as the
Holder shall reasonably request and shall be registered in the name of the Holder. This Warrant shall be deemed to have been exercised and such book entry position representing the Warrant Shares shall be deemed to have
|
c. |
Fractional Shares. The Company shall not be required to issue a fractional
share of Common Stock upon exercise of the Warrant and shall round up to the nearest whole share.
|
d. |
Valid Issuance of Warrant and Warrant Shares. Subject to the terms and
conditions of the Memorandum of Agreement and Master Agreement, including the accuracy of the representations and warranties of the Holder contained therein, with respect to the exercise of this Warrant the Company hereby represents,
covenants and agrees:
|
i. |
This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued and a
valid and binding obligation of the Company.
|
ii. |
The Warrant Shares issuable upon the exercise of this Warrant pursuant to the terms hereof shall be, upon issuance, and the Company shall take all such actions
as may be necessary or appropriate in order that such Warrant Shares are, validly issued, fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all
taxes, liens, claims, encumbrances and charges and registered for resale under the Securities Act at the time such Warrant Shares are issuable hereunder.
|
iii. |
Assuming the accuracy of the representations and warranties of Holder in the Master Agreement, the offer and sale of the Warrants and, upon issuance, the
Warrant Shares, are exempt from the registration and prospectus delivery requirements of the Securities Act.
|
iv. |
The Company shall take all such actions as may be necessary to ensure that the Warrant Shares are issued without violation of (i) by the Company or its agents
(including the Transfer Agent) of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed at the time of such exercise (except for official notice
of issuance which shall be immediately delivered by the Company upon each such issuance).
|
e. |
Payment of Taxes. Issuance and delivery of certificates or book entry
positions for shares of Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any transfer agent fee or issue tax or transfer tax or withholding tax or other incidental tax or expense imposed by the
Republic of the Marshall Islands, in respect of the issuance of such certificates, all such taxes and expenses shall be paid by the Company; provided,
however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a
|
a. |
Agreement to comply with the Securities Act; Legend. The Holder, by
acceptance of this Warrant, agrees to comply in all respects with the provisions of this Section 8 and the restrictive legend
|
b. |
Representations of the Holder. In connection with the issuance of this
Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant, as follows:
|
i. |
The Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant and
the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to
resales registered or exempted under the Securities Act.
|
ii. |
The Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the
federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the
Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the
Securities Act.
|
iii. |
The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Warrant and the Warrant Shares and the business, properties, prospects and financial condition of the Company.
|
If to the Company:
|
Diana Shipping Inc.
Pendelis, 16
175 64 Palaio Faliro
Athens, Greece
Attention: Mr. Ioannis Zafirakis
Email: izafirakis@dianashippinginc.com
|
|
with a copy to:
|
Attention:
E-mail:
|
|
If to the Holder:
|
Attention:
Email:
|
|
with a copy to:
|
Attention
Email:
|
DIANA SHIPPING INC.
|
|||
By:
|
|||
Name:
|
Ioannis Zafirakis
|
||
Title:
|
Chief Financial Officer
|
HOLDER:
|
||
By:
|
||||
Name:
|
||||
Title:
|
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
||
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
|
||
August 19, 2022 |
Very truly yours,
/s/ Seward & Kissel LLP
|
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004
|
||
|
TELEPHONE: (212) 574-1200
FACSIMILE: (212) 480-8421
WWW.SEWKIS.COM
|
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE: (202) 737-8833
FACSIMILE: (202) 737-5184
|
August 19, 2022
|
Very truly yours,
/s/ Seward & Kissel LLP
|
Security
Type |
Security Class
Title
|
Fee
Calculation
Rule
|
Amount
Registered(1)
|
Proposed
Maximum
Offering
Price Per
Unit(2)
|
Maximum
Aggregate
Offering Price
|
Fee Rate
|
Amount of
Registration
Fee
|
||||||||||||||||||||||
Fees to Be Paid
|
Equity
|
Common Shares, no par value
|
457(c)
|
18,487,395
|
$
|
5.37
|
$
|
99,277,311
|
0.0000927
|
$
|
9,203
|
||||||||||||||||||
Total Offering Amounts
|
$
|
99,277,311
|
$
|
9,203
|
|||||||||||||||||||||||||
Total Fees Previously Paid
|
—
|
||||||||||||||||||||||||||||
Total Fee Offsets
|
—
|
||||||||||||||||||||||||||||
Net Fee Due
|
$
|
9,203
|
|||||||||||||||||||||||||||
(1)
|
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the common shares offered hereby and the common
shares issuable upon exercise of warrants also include an indeterminate number of additional common shares as may from time to time become issuable by reason of share splits, share dividends, recapitalizations or other similar transactions.
|
||||||||||||||||||||||||||||
(2)
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act, based on the
average high and low prices of the common stock of Diana Shipping Inc. on August 17, 2022, as reported on the New York Stock Exchange.
|
||||||||||||||||||||||||||||